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2001 DIGILAW 1053 (AP)

D. Prabhakar Reddy v. Ramachandra Reddy

2001-09-18

N.V.RAMANA, S.B.SINHA

body2001
S. B. SINHA, C. J. ( 1 ) THESE appeals are directed against a common judgment of a learned single Judge of this Court in Writ petition Nos. 11075 of 1999 and 11270 of 1999 dated 24-9-1999 whereby and whereunder the learned Judge allowed the writ petitions filed by a Manager and some of the Accountants of the Karimnagar District co-operative Central Bank, Karimnagar, with the following directions:"1. The impugned integrated inter se seniority list of Category III employees of karimnagar District Co-opreative Central bank Limited, Karimnagar as on 1-11-1991 is set aside by declaring the same as arbitrary, illegal and unconstitutional. 2. The impugned integrated inter se seniority list of Category IV employees of karminagar District Co-operative Central bank Limited, Karimnagar as on 1-11-1991 is set aside by declaring the same as arbitrary, illegal and unconstitutional. 3. The promotion orders promoting the respondents 4 and 5 in WP No. 11270 of 1999 to the posts of Assistant General managers are null and void and are quashed. The respondents 4 and 5 shall be reverted back to their original posts forthwith. The various impugned promotion orders dated 15-5-1999 promoting the respondents 4 to 13 in WP no. 11075 of 1999 to the posts of managers are declared null and void and the same are quashed. The respondents 4 to 13 shall be reverted back to their original posts forthwith. 4. It is ordered that the competent authority is at liberty to prepare the integrated final seniority list in accordance with law, the rules and various circular instructions issued by the first respondent from time to time and pending such exercise for the preparation of integrated final seniority list for the respective cadres, the competent authority is at liberty to promote the qualified, eligible and suitable officers in the lower cadre to the post in the higher cadre in accordance with the provisional seniority list. This exercise may be undertaken and completed by the competent authority within a period of 3 months from today without being prejudiced by any of the averments made by the General Manager in the counter affidavit filed before this Court in WP no. 11270 and 11075 of 1999 and keeping in view the judgment of Division Bench of this Court in D. V. V. Satya Prasad s case (supra ). 11270 and 11075 of 1999 and keeping in view the judgment of Division Bench of this Court in D. V. V. Satya Prasad s case (supra ). " ( 2 ) AGGRIEVED by the impugned judgment of the learned single Judge, some of the unofficial respondents in WP nos. 11075 and 11270 of 1999 have filed writ Appeal Nos. 1451 and 1452 of 1999. The Managing Committee (Board of directors) and the General Manager of the karimnager District Co-operative Central bank ( the Bank for brevity) - respondents 2 and 3 in both the writ petitions have preferred writ Appeal Nos. 1717 and 1721 of 1999 impugning the judgment of the learned single judge. Facts: ( 3 ) THE petitioner in WP No. 11270 of 1999 is working as Manager in the Bank since 14-4-1980 and he was placed at s. No. 17 in the category of Managers (Category III) in the provisional integrated inter se seniority list as on 1-11-1991. The respondents 4 and 5 (appellants in WA no. 1451 of 1999), who were working in cadre of Managers with effect from 12-1-1985 and 2-2-1988 respectively in the erstwhile primary Agricultural Development Bank, which was merged with the District development Bank by the Act 1 of 1987, were admittedly placed at S. Nos. 26 and 31 respectively in the provisional seniority list dated 12-8-1998. While so, the Managing committee of the Bank, after taking into consideration the objections from the aggrieved persons as regard the seniority list fixed provisionally by the Bank, in a meeting held on 15-5-1989 resolved to approve the integrated seniority list of employees in cadres III, IV and V of the Bank. Accordingly, the impugned integrated final seniority list of Cadre in employees was prepared placing the petitioner at S. No. 21 and respondents 4 and 5 at S. Nos. . 1 and 3 and consequently respondents 4 and 5 (appellants in WA No. 1451 of 1999) were promoted to the post of Assistant General manager. Aggrieved by the said integrated final seniority list and the consequential orders promoting respondents 4 and 5, the petitioner filed the writ petition. WP No. 11075 of 1999 is filed by nine accountants working in the Bank whose seniority was fixed provisionally at S. Nos. 12, 14, 16, 18, 21, 22, 24, 25 and 29 respectively in Cadre IV employees of the Bank as on 1-11-1991. WP No. 11075 of 1999 is filed by nine accountants working in the Bank whose seniority was fixed provisionally at S. Nos. 12, 14, 16, 18, 21, 22, 24, 25 and 29 respectively in Cadre IV employees of the Bank as on 1-11-1991. The Managing Committee, after taking into consideration the objections raised by the aggrieved employees, in its meeting held on 15-5-1995 approved the integrated final seniority list of Cadre IV employees of the Bank fixing the seniority of the writ petitioners below respondents 4 to 13 (appellants in WA No. 1452 of 1999 and some others) and consequently respondents 4 to 13 were promoted to the post of Managers. Aggrieved by the final integrated seniority list dated 15-5-1999 and the consequential orders promoting respondents 4 to 13 (appellants in WA No. 1452 of 1999 and some others) the writ petition was filed. Submissions: ( 4 ) MR. R. Subhas Reddy, the learned counsel for the appellants would contend that the validity of Rule 73 of the Rules have been upheld by a Division Bench of this Court in D. V. V. Satya Prasad v. Government of A. P. , 1996 (1) ALT 390 . According to the learned Counsel, in a situation of this nature, particularly having regard to the fact that the violation of the principles of natural justice having been alleged, the writ petitioners ought to have taken recourse to an appeal as provided under Rule 73 (ix) of the Rules. The learned counsel would contend that while directing preparation of de novo seniority list, a direction upon the respondents to promote the writ petitioners and reverting the respondents must be held to be unjust. It was submitted that the learned single Judge, having observed that the Court was not inclined to go into the question as regard the validity or otherwise of the provisional seniority list, should not have issued the directions on the ground that they are in violation of the principles of natural justice. The learned Government Pleader for cooperation supports the contention of Mr. R. Subhash Reddy. Mr. P. V. Narayana Rao, appearing on behalf of the respondents - writ petitioners submitted that having regard to the admitted fact that the appellate authority had already considered the matter, an appeal thereagainst would be incompetent. The learned Government Pleader for cooperation supports the contention of Mr. R. Subhash Reddy. Mr. P. V. Narayana Rao, appearing on behalf of the respondents - writ petitioners submitted that having regard to the admitted fact that the appellate authority had already considered the matter, an appeal thereagainst would be incompetent. The learned Counsel would contend that two separate seniority lists have been prepared, and the writ petitioners, although were getting higher pay, a change in the seniority list was effected without any notice to them. As several organisations are involved, the learned Counsel would contend, issuance of second notice was imperative. Referring to the decision of the Apex Court in s. B. Patwardhan, v. State of Mahrashtra, air 1977 SC 2051 , the learned Counsel would argue that interim promotions granted to the appellants must be held to be illegal. Findings: ( 5 ) BEFORE the learned single Judge, a question was raised as regards the maintainability of the writ petitions on the ground that an appeal is maintainable in terms of Rule 73 of the A. P. Co-operative societies Rules, 1964 ("the Rules" for brevity ). Sub-rules (vi) and (ix) of Rule 73 of the rules reads:"73. Transfer of employees of erstwhile primary Agricultural Development Banks to the service of the District Co-opeative Central banks: xxx (vi) (a) Inter-se-seniority :"the inter-se- seniority of the erstwhile Primary Agricultural development Bank employees and of the district Co-operative Central Bank employees in the equated cadres in each district shall be fixed by the General Managers, District co-operative Central Bank on the basis of the dates of their appointment in the cadres in which they are working on regular basis including notional promotions. If the dates of such appointments happens to be the same, the seniority shall be fixed on the basis of the age, the elder being placed above the younger. However, in this process, the inter- se-seniority of the Primary Agricultural development Bank personnel and the inter- se-seniority of the District Co-opeative central Bank personnel shall not be disturbed. If the dates of such appointments happens to be the same, the seniority shall be fixed on the basis of the age, the elder being placed above the younger. However, in this process, the inter- se-seniority of the Primary Agricultural development Bank personnel and the inter- se-seniority of the District Co-opeative central Bank personnel shall not be disturbed. " (B) The General Manager, shall initiate action for fixation of inter-se-seniority within six months of issue of order of Registrar of co-operative Societies transferring the erstwhile Primary Agricultural Development bank employees to the District Co-opeative central Banks and give opportunity to all concerned to file objections, if any, within one month of publication of the inter-se- seniority and, after considering objections, issue the final list within four months. xxx (IX) Appeal :any person aggrieved by an order of the General Manager of the District co-operative Central Bank may appeal to the Managing Committee of the District Cooperative central Bank concerned and its decision shall be final and binding. "in terms of Rule 73 (vi) (b) of the Rules, the general Manager alone is competent to initiate proceedings for fixation of inter-se- seniority. He is also the competent authority for preparation of the final seniority list. The expression "managing Committee" would mean an "appellate authority" in terms of Rule 73 (ix ). Sub-rule (vi) (b) of Rule 73 of the Rules is categorical in terms that the managing Committee of the Bank is not competent to initiate action for fixation of inter-se-seniority, provisional or otherwise, of the employees. In the instant case, it is not in dispute that the final seniority list has been issued by the Managing Committee of the Bank, as a result whereof the unofficial respondents herein have been deprived of a right of appeal. On a bare perusal of the statutory rules, as noticed hereinbefore, there cannot be any doubt whatsoever that the initiation of proceedings for preparation of an integrated seniority list by the Managing committee of the Bank was wholly illegal. The statutory authorities have derived their jurisdiction from the statutes. They, thus, must act within the four corners of the statute. A higher authority cannot unless the statute permits, usurp statutory function assigned to the statutory authority. It is well settled that the statutory authority while exercising its statutory function must follow the procedures laid down under the statutes or not at all. They, thus, must act within the four corners of the statute. A higher authority cannot unless the statute permits, usurp statutory function assigned to the statutory authority. It is well settled that the statutory authority while exercising its statutory function must follow the procedures laid down under the statutes or not at all. The appellate authority cannot exercise the power of the original authority, as a result whereof, the aggrieved persons may be deprived of a right of appeal. In Surjit ghosh v. Chairman and M. D. United commercial Bank, AIR 1995 SC 1053 , the apex Court has clearly held:"5. . . . . . . . . . IT is true that when an authority higher than the disciplinary authority itself imposes the punishment, the order of punishment suffers from no illegality when no appeal is provided to such authority. However, when an appeal is provided to the higher authority concerned against the order of the disciplinary authority or of a lower authority and the higher authority passes an order of punishment, the employee concerned is deprived of the remedy of appeal which is a substantive right given to him by the Rules/regulation. An employee cannot be deprived of his substantive right. What is further, when there is a provision of appeal against the order of the disciplinary authority and when the appellate or the higher authority against whose order there is no appeal, exercises the powers of the disciplinary authority in a given case, it result in discrimination against the employee concerned. . . . . . . . . . . . . "from the proceedings dated 15-5-1999 issued by the General Manager of the Bank it would appear that integrated seniority list was prepared at the instance of the Managing committee and the same was approved by it in a meeting held on 15-5-1989. Only on the basis of the said purported seniority list, the appellants in WA Nos. 1451 and 1452 of 2001 and some others have been promoted. The submission of the learned Counsel for the appellants to the effect that the principles of natural justice are not required to be followed is stated to be rejected. While preparing a final seniority list, a person who may lose a few places may have to be issued a notice. In Shri bhagwan v. Ram Chand, AIR 1965 SC 1767 at pp. While preparing a final seniority list, a person who may lose a few places may have to be issued a notice. In Shri bhagwan v. Ram Chand, AIR 1965 SC 1767 at pp. 1770, considering the provisions of State Re-organisation Act, the Apex Court held:"the application of the doctrine depends upon the nature of the jurisdiction conferred on the administrative authority, upon the character of the rights of the persons affected, the scheme and policy of the statute and other relevant circumstances disclosed in the particular case. "the decision in Shri Bhagwan (supra) was followed by the Apex Court in Union of india v. P. K. Roy, AIR 1968 SC 850 , wherein the Apex Court considered the contention of the Solicitor General that a final gradation list was prepared and the "assumed date" in column No. 6 was inserted on the principle of "kicking down" holding:"11. . . . . . . THE argument was stressed that the principle could be applied only on the basis of "kicking down" and that principle was implicit in the preparation of the final gradation list. We are, however, not quite sure whether the Solicitor-General is right in his contention on this point. We think that the final gradation list could have been prepared on the basis of the principle agreed upon in the conference of the Chief secretaries both on the method of "kicking down" and the alternative method of "kicking up". It is nowhere stated either in the preliminary gradation list or in the final gradation list that the principle of "kicking down" was adopted in preference to the alternative principle. It was argued by mr. Asoke Sen that in regard to both these matters the respondents have a right of representation and the final gradation list should have been published after giving them a further opportunity to make a representation. Normally speaking, we should have thought that once opportunity for making a representation against the preliminary list published would have been sufficient to satisfy the requirements of law. But the natural justice cannot be imprisoned within the straight jacket of a rigid formula. The application of the doctrine depends upon the nature of the jurisdiction conferred on the administrative authority, upon the character of the rights of the persons affected, the scheme and policy of the statute and other relevant circumstances disclosed in the particular case. . . . . The application of the doctrine depends upon the nature of the jurisdiction conferred on the administrative authority, upon the character of the rights of the persons affected, the scheme and policy of the statute and other relevant circumstances disclosed in the particular case. . . . . . . . . . . . . . . . . . "we, therefore, do not find any infirmity in the judgment under appeal. We, however, are of the opinion that keeping in view the fact that the entire process can be directed to be completed within a period of four weeks, and further having regard to the fact that the appellants herein are working in the promoted posts for a long time, it may not be equitable to revert them at this stage and while reverting them the writ petitioners would be directed to be promoted. We, therefore, direct that in terms of the directions of the learned single Judge, the entire procedure must be completed within four weeks from date, during which period; the appellants herein need not be reverted. However, it goes without saying that they shall he holding their posts on an ad hoc basis and they shall not claim any equity in their favour. With the aforementioned modification, the appeals are allowed to the extent as indicated above, but without any order as to costs.